Legally Dead

A Canadian government-appointed expert panel developed non-binding rules designed to expand the pool of transplant donors has raised controversy over its new guidelines for the declaration of "legally dead" for the purpose of recognizing brain death, making organs eligible for harvesting.  Now, a legal scholar is arguing that those new guidelines quite possibly violate the Charter of Rights and Freedoms.

A rather awkward outcome for a situation where a shortage of organ donations are urgently needed to keep potential recipients who are desperately ill from certain death.  But the new rules also make it more likely that people will be declared dead while still alive.  The chronic shortage of donor organs results in roughly 300 Canadians badly in need of replacement organs dying annually.

According to Jacqueline Shaw, who wrote in the McGill Journal of Law and Health, the new guidelines for declaration of legal death appear to violate the right to life and security of the person.

"The recent government issuance of significant, dangerous, under-the-radar changes in guidelines for brain death determination in Canada is virtually unknown and warrants greater public attention. The brain-death changes dramatically increase the potential to misdiagnose as 'brain dead' patients who are simply suffering from temporary, reversible neurological states."

"More often than not, it delays the declaration of death, so the physician at the beside gets it right", said Dr. Sonny Dhanani, pediatric critical-care specialist in Ottawa and chief medical officer with Ontario's Trillium transplant network.  "At the end of the day the goal  was to make declaration more consistent and rigorous so that we felt better about moving toward organ donation rather than uneasy about it."

The criteria for acknowledging brain-death recognized by the Canadian Council for Donation and Transplantation guidelines are generally accepted by the balance of the medical community in Canada.  Leaving a persistent minority of intensive-care physicians, bioethicists and others in both Canada and the United States doubtful about the process, concerned that some donors may still be alive, technically.

Canadian and American doctors issued a joint journal paper in 2010 calling for a moratorium in the new practise of declaring death once the heart has stopped,  yet without determining brain death.  Brain death could not be declared when the brain stem is no longer functioning, affecting the previous 'whole brain' rule requiring doctors to determine whether the cortex had also shut down. 

The argument was that some consciousness might be present even after the stem has died.

Dr. Dhanani points out that when the brain stem, representing the most primitive portion of the brain that controls basic functions like breathing  is dead, it follows that the brain in its entirety must be dead. 

The new guidelines are criticized as well for abandoning safeguards such as not declaring brain death until anticonvulsants, sedatives or other drugs have drained completely from the system, since they have the capacity to result in a death-like state.

Previous guidelines insisted on a wait time of up to 24 hours between examinations carried out by two different doctors, allowing for the possibility the person could be seen to be alive at the second test.